In support of this latter provision, Cordova argued:
(1) The special importance and the unique and vast scope of this article, as well as the main ideas on
which it is based, have already been partly explained in [para.’s 35 – 37 quoted above].
(2) There are hundreds of thousands of individuals who, on political, economic or racial grounds, had to
leave their country of origin of which they were nationals and which in turn, quite frequently, is
unwilling to accept them again or to accord them the minimum protection to which they are entitled as
human beings. These de facto stateless persons have sought refuge in foreign countries and have
established there a residence which they perhaps intended to be temporary, or to which the local
authorities may have refused a permanent character, but which may have become, in fact, permanent or,
at best, indefinite. The recipient countries accepted them for humanitarian reasons and, faced with the
dilemma of an inhuman refoulement or expulsion to another country (which is not always possible), have
resigned themselves to allowing them to stay, postponing sine die the final settlement of the problem but
always maintaining the threat of some drastic action concerning them.
(3) If the legislation of the recipient countries happens to be based on the jus soli principle, the problem
will ultimately be solved by the mere passage of time. The stateless persons will eventually die and their
children will acquire the nationality of such countries by operation of the law. The situation is quite
different in the case where the recipient country follows the jus sanguinis principle. In this case, the
stateless person and his descendants may forever remain in this condition.
(4) In both these cases resumed action should be taken because, in the first instance, at least one complete
generation would have to pass before the problem is solved and, in the second one, it might never be
solved unless the Convention on the Elimination of Future Statelessness is adopted by the States
concerned.
(5) The most practical and just solution would be the one suggested in this article, namely, to extend to
de facto stateless persons the juridical remedies which have been proposed for de jure stateless persons,
e.g. the granting of the restricted nationality envisaged in articles 1 and 2 of this Convention.
The Commission voted against including de facto stateless persons after objections were
expressed by one of its members, Mr. Lauterpacht, that the term “de facto statelessness” had
never been clearly defined, that it would be very difficult in practice to make a clear
distinction between de jure and de facto statelessness, that including de facto stateless
persons “would impose upon States the duty and give them the right to decide that a person
who was a national of State X was not really a national of that State”, and that States would
accordingly be obliged to treat de facto stateless persons as assimilated in most respects to
their own nationals.41
However, the Commission did retain many of Cordova’s proposals on present statelessness
with respect to de jure stateless persons, including all of those mentioned above, i.e. that such
persons should have the same rights as nationals of their State of residence except for
political rights, that they should have the same rights to naturalization as aliens, and that their
children should have the right to citizenship upon reaching the age of majority. But instead
of assembling the proposals into a draft Convention or Protocol, the Commission stated that
“though formulated in the form of articles, [the proposals] should merely be regarded as
suggestions which Governments may wish to take into account when attempting a solution of
this urgent problem.”42
41
42
Summary record of the 246th meeting of the International Law Commission, A/CN.4/SR.246, 1954, para.
18; Summary record of the 249th meeting of the International Law Commission, A/CN.4/SR.249, 1954,
para.’s 15 – 17.
Report of the International Law Commission to the General Assembly covering the work of its sixth
session, A/2693, 1954, p. 147, para. 36.
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